To BCC, or not to BCC, that is the question:
Whether ’tis better in practice to email
Communications to opposing counsel while also copying a client,
Or to send a separate email to the client,
And avoid having a client respond to all.
That is the question.
While Shakespeare never contemplated email, let alone communications among lawyers, other attorneys and clients, the question for lawyers is clear: Should lawyers CC (carbon copy) or BCC (blind carbon copy) a client on email that includes opposing counsel as a recipient? After all, including a client on an email with opposing counsel raises many potential traps and questions, including the obvious ones:
- What if the client replies, and divulges information that is confidential or that is deleterious to the client’s case?
- Should lawyers include clients on email with opposing counsel, either by CC or BCC?
Allow me to explain in non-Shakespearean style. Lawyers routinely communicate by email. It’s easy. They communicate with opposing counsel, and they communicate with clients. And if they send separate emails to each, no issues arise. But they don’t always do so.
At times, for a variety of reasons, lawyers may send an email to opposing counsel, and while doing so, they either CC or BCC their clients. If they CC clients, opposing counsel knows, or should know, that the client has been included in the email just by looking at the email header. However, if the client (or anyone else) is BCCed, recipients of the email do not know that the persons who were BCCed received it.
In either instance, clients who are CCed or BCCed on email may “Reply to all,” either intentionally or without realizing what they are doing. In the process, they may disclose confidential information or create other problems for their cases.
Obviously, the best practice is not to include a client on emails with opposing counsel, although in my experience it is not uncommon. By choosing to include clients, attorneys create practical problems (when a client responds to all or, at least, to opposing counsel), and raise ethical issues, including:
- Whether including a client’s email address in the CC line may disclose confidential information about the representation in violation of Model Rule of Professional Conduct 1.6;
- Whether opposing counsel is permitted under the Model Rules of Professional Conduct to reply to all in a response to an email that includes opposing counsel’s client;
- Whether including the client on an email as a CC or BCC creates a risk, contrary to the Model Rules of Professional Conduct, that a client will respond and include opposing counsel as a recipient, potentially disclosing privileged and/or confidential information; and
- Whether an attorney who receives privileged information on an email chain created by the use of CCs or BCCs has a duty to report the disclosure to opposing counsel.
Many state and local bar associations have considered this issue, including Pennsylvania (Formal Opinion 2020-100), New York City (Formal Opinion 2009-01), North Carolina (2012 Formal Ethics Opinion 7), New York (Opinion 1076), Kentucky (Ethics Opinion KBA E-442), and Alaska (Opinion 2018-1). Each of the opinions recognize that using CCs and BCCs on email has risks and raises ethical concerns, although they reached differing conclusions about the obligations of counsel and opposing counsel. It is important for attorneys facing this issue to review the guidance available in the states where they practice.
In general, the issue implicates several Model Rules of Professional Conduct, including Rule 1.4 (Communication); Rule 1.6 (Confidentiality); Rule 4.2 (Communication with Person Represented by Counsel); and Rule 4.4 (Respect for Rights of Third Persons). The critical issues are confidentiality, and the general prohibition on communicating with a represented party.
When an attorney copies a client (uses CC) on an email to opposing counsel, the email discloses the client’s email address to opposing counsel. It also encourages clients to respond, including responding to all and, as a result, communicating directly with opposing counsel, which could result in disclosure of confidential or otherwise protected information.
Disclosing the client’s email address may violate Rule 1.6(a), which prohibits a lawyer from revealing “information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph.” Copying a client on an email may also disclose other information, including, for corporate clients, the corporate client’s decision makers.
The potential for a client responding to all is of greater concern when the client is BCCed on an email. When a client receives a BCC, opposing counsel does not know the client has been included. If the client did not realize that he or she was BCCed, the client may view the email as an invitation to reply. In doing so, the client may disclose information to an opposing party unwittingly, and the lawyer may have violated Model Rule 1.6(c)’s requirement to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”
Ethical guidance from various state and local bar associations offers a range of views, but in general, there remains one with which all tend to agree. As a rule, lawyers should avoid carbon copying or blind carbon copying clients on email, especially those to opposing counsel. And if doing so is necessary, the lawyer should first explain to the client why the lawyer is using CC or BCC, and that the client should not respond to all.
About the Author
Daniel J. Siegel is a nationally recognized authority on legal ethics, technology, cybersecurity, techno-ethics, data protection, and business/law office practice and workflow management. Contact him on Twitter @danieljsiegel.